Note on Character: The Unacknowledged Element in Shifting the Burden of Proof in a Will Contest
According to Tolstoy, “happy families are all alike; every unhappy family is unhappy in its own way.” Often, the doctrine of undue influence requires a court to examine the quality of relationships within a family. A disinherited heir may challenge their disinheritance by attempting to prove the testator’s volition was substituted by another at the time the will in question was made, and therefore, is a product of undue influence. If the heir is successful, the will is void. However, since the testator is no longer living at the time of the suit, how can a court determine the testator’s state of mind at the time the will in question was made? Rather than rely on direct evidence that usually does not exist, the law creates presumptions to deal with the inability to question the testator.
In Michigan, a contestant to a will may raise a rebuttable presumption that the testator’s will is a product of undue influence, thereby shifting the burden to the beneficiary to produce evidence negating the presumption. If the beneficiary fails to produce any rebuttal evidence, a directed verdict in favor of the contestant is proper, without requiring the contestant to provide any further factual support. On the other hand, if the proponent of the will produces sufficient evidence to rebut the presumption, the question of whether the will was a product of undue influence will be decided by the trier of fact. While this seems relatively straightforward, Michigan courts are in chaos regarding the type and quality of evidence a beneficiary must produce to adequately rebut the presumption the of undue influence.
Although Michigan has experienced three different “eras” with respect to its treatment of presumptions in civil cases, courts are in conflict regarding the evidentiary force of the presumption in cases involving undue influence. Prior to 1965, Michigan followed the Thayer “bursting bubble” theory of presumptions. Under Thayer, the presumption had the slightest effect and upon the introduction of any evidence to rebut the presumption, the presumption disappears. In 1965, the Michigan Supreme Court moved away from Thayer and adopted a “modified Morgan” approach to presumptions. When a presumption is met with rebuttable evidence under Morgan, the presumption remains as a permissible inference and the underlying issue is to be weighed by the trier of fact. In 1978, Michigan adopted MRE 301, once again returning to the Thayer camp. However, a host of Michigan cases involving undue influence have been dismissed on summary disposition despite the existence of facts giving rise to the presumption of undue influence throughout every era. This has been true even when the presumption has been met with rebutting evidence. Thus, under the paradigms of Thayer and Morgan, it appears that Michigan courts are in complete chaos over the effect of a presumption.
Responding to the fact that Michigan law is unsettled over the treatment of presumption in cases involving undue influence, this Comment proposes an alternative method of looking at the burden-shifting analysis. The doctrine of undue influence can easily be described as one big evidence issue because the best evidence, the testimony of the testator, is obviously unavailable. Thus, in every case of undue influence, two litigants walk into the courtroom, neither of them with solid direct evidence that the will is a product of undue influence or not. Due to the lack of proof regarding the testator’s state of mind, courts must weigh the credibility of the witnesses to the suit. Under this paradigm, parties’ “bad character” is an unacknowledged element in the shifting burdens of proof and the courts are placing the ultimate burden of proving undue influence upon the litigant who appears to be lacking in virtuous character.
Part I provides background on the doctrine of undue influence and how a contestant may raise a presumption of undue influence. Part II describes the effect of the presumption of undue influence in a will contest. This examination includes a discussion of the two prevalent theories on the operation of presumptions in civil cases and how Michigan has varied its treatment of presumptions in cases involving undue influence. This part then explores how Michigan case law has ignored the applicable rules surrounding presumptions in cases of undue influence in each of the three eras. Part III concludes that while it appears that Michigan courts are in chaos in deciding cases of undue influence, the decisions are actually consistent when the character of the litigants is acknowledged.